Citation Nr: 1326752	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  08-17 238	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 

2. Entitlement to a disability evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD). 



REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel



INTRODUCTION

The Veteran had active service from February 1982 to October 1991. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal, in part, from an April 2008 RO decision which denied service connection for GERD. The Veteran appealed this decision to the Board and in a January 2010 decision, the Board denied the claim.  The Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court). In an August 2011 decision, the Court vacated the Board's January 2010 denial of the claim for service connection for GERD, and remanded the matter to the Board.  The Court also affirmed the Board's denial of an increased evaluation for PTSD that stemmed from a February 2008 rating decision. 


This matter also arises from a September 2011 rating decision which denied an increased rating for PTSD. 

In February 2013, the Board remanded the claims to the RO for additional development. In a March 2013 rating decision, the RO increased the Veteran's PTSD rating from 50 to 70 percent, effective May 9, 2011, the date of receipt of the claim. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Also, in May 2013, the RO granted a total rating based on individual unemployability (TDIU), effective from June 9, 2011. 

Further development of the claim of entitlement to service connection for GERD is required, and that claim is again REMANDED to the RO. 



FINDING OF FACT

The Veteran's PTSD is not productive of total social and occupational impairment. 


CONCLUSION OF LAW

The criteria for a rating in excess of 70 percent for PTSD is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.126, 4.130, Diagnostic Code (DC) 9411 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 
218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. 

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id.  

I. Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of what is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should be provided prior to an initial decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a) (West 2002). Compliance with the first Quartuccio element requires notice of these five elements. See id. at 486. 

The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assisting him in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. 

The Board finds that the duty to notify has been satisfied. A VCAA notice letter was sent in June 2011 that informed the Veteran of the evidence required to substantiate his increased rating claim and VA's respective responsibilities in obtaining this supporting evidence. That June 2011 letter also discussed the effective date elements of his claim. The RO readjudicated the claim in the SSOCs dated in November 2011 and again in March 2013 - including considering the additional evidence. See again Mayfield IV and Prickett, supra. So any arguable timing defect in the provision of that additional notice has been rectified ("cured"). 

The Board also concludes that the duty to assist has also been satisfied. The Veteran's service treatment records (STRs) and post-service medical records have been associated with the claims file. His Social Security Administration records have been associated with the Virtual VA file. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claim. The Veteran has also been afforded VA examinations, most recently in March 2013 for information and for evaluation of his PTSD disability. The Board finds the examination reports to be adequate for adjudication on the merits. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). 

In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. Accordingly, the Board will adjudicate the claim on the merits.




II. Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 

When a Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). 

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased-rating claim was filed, actually, from one year prior, until a final decision is made. The analysis therefore is undertaken with consideration of the possibility that different ratings may be warranted for different time periods, a practice known as "staged" rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). 

The Veteran's PTSD is evaluated as 70 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9411 (2012). Under DC 9411, the criteria for a 70 percent rating are: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. 

A 100 percent rating requires total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss of names of close relatives, own occupation or own name. Id.

The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health- illness." DSM-IV at 32. GAF scores ranging from 61 to 70, for example, reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). See Carpenter v. Brown 8 Vet. App. 240, 242 (1995). 

III. Factual Background

The Veteran asserts the assigned 70 percent rating is inadequate and it should be increased to a 100 percent rating.

In a June 2011 VA PTSD examination, the Veteran reported employment as the president of a laundry business. He stated that as of March 2011, his physical condition made him unable to perform many work related activities, and he had resigned as president of the business. The Veteran reported nightmares 3 times per week that awakened him, caused disorientation, which would take him a while to get back to sleep. He had been doing a little better with increased medication. The Veteran reported that he did not go anywhere or do anything outside his home. He had no friends, and regarding his wife, he stated that she "lived life without me." The Veteran reported dealing with a lot of anger about military service, which played over in his mind. He had learned how to avoid everything, and he knew what situations made his discomfort worse. He did better if he avoided people. 

The Veteran had intrusive memories on a daily basis. He only had contact with immediate family, and he was unable to attend family functions because of his condition. He did not follow new reports on the Middle East, and he did not watch war movies. He was unable to tolerate fireworks or pyrotechnics. Medications helped the Veteran sleep. The Veteran reported many emotional outbursts so he isolated himself from people. His mother no longer could drive with him, and he overreacted if someone drove too slowly or turned in a way he did not like. He stated that he had road rage. The Veteran tried to avoid triggers to his anger. He reported that he had ongoing problems with concentration, and that he would sit around the house and does nothing. 

The mental status examination revealed that the Veteran presented casually, but neatly dressed and adequately groomed. He produced some spontaneous speech. His verbal report was soft and clear, a bit slower than average, but there was no indication of thought blocking or psychomotor retardation. His content was logical, coherent, and relevant. There was no indication of disturbed thinking process. Moderate blunting of mood was reported. The Veteran was verbally tense, and he became teary as he spoke. He was oriented in all spheres, and he showed no impairment of attention span, comprehension, general knowledge or recall. The examiner reported the Veteran showed a pattern of depressive symptomatology and that he had passive thoughts of death without suicidal ideation. He was not seen as a risk to himself or others. The diagnoses were: PTSD, chronic, moderate to severe; major depressive disorder, recurrent, moderate; alcohol dependence in remission. The GAF score was 50. 

Social Security Administration records show that in November 2011 the Veteran was awarded disability benefits from June 2011, based on affective/mood and anxiety related disorders. 

In November 2011 a psychiatric examination was performed for Social Security benefits. The examination report encompasses Social Security psychiatric evaluation reports dated from April 2011. The Veteran reported that he had not slept through the night in over 20 years, and he was so depressed he could not function. He cried as he reported his symptoms. The examiner stated that the Veteran reported significant anxiety and physiological arousal. He was triggered by sights, sounds, and noises. He was hypervigilant. The Veteran did not like to be around many people. When people were behind him or he was in enclosed situations, he had panic attacks. He had several flashbacks daily, and he was avoidant of anything that reminded him of his experience. He used psychiatric medication, and he had never been in therapy, and he had no mental health hospitalizations. 

The examiner reported that the Veteran's spouse had indicated that he did not perform house work or chores because he became easily tired and he could not finish anything he started. He went to the store for groceries as needed. He had an interest in reading and watching television. The Veteran talked with family on the computer once per week and he went to church once per week. She stated that he had difficulty getting (along) with others. He did not associate with others, and he stayed home. He did not handle changes in his routine well. 

The Veteran lived with his wife and the youngest of their three children who was 8 years old. He reported that he rarely did anything, but he did spend time with his youngest son. In the mental status examination, it was reported that the Veteran's appearance was casual. He was cooperative and pleasant, but he struggled in the interview because he became emotionally overwhelmed. His stream of consciousness was coherent and goal directed. He denied hallucinations, paranoid thinking or delusions. He endorsed frequent flashbacks and periods of being confused/disoriented. His affective tone was flat. He appeared significantly anxious and depressed. The Veteran reported sleep disturbance, poor concentration, fluctuating weight, poor appetite, low energy, irritability, a sense of hopelessness about the future, poor memory, and social withdrawal. He seemed to struggle to communicate verbally as a result of his depressed mood and anxiety. He reported frequent suicidal thoughts but denied any current thoughts or intent. The Veteran was oriented to person, place, and time. His insight and judgment were described as poor. 

The diagnoses were: PTSD, chronic; major depression, recurrent, severe; alcohol dependence, in remission; nicotine dependence in remission. The GAF was 45. The examiner stated that the Veteran was able to understand instructions, but he may have difficulty remembering and following them. He would have difficulty sustaining attention and concentration most of the time. He would also likely struggle to carry out work like tasks with reasonable persistence and pace. He is unable to respond appropriately to brief and superficial contact with co-workers and supervisors. The examiner stated that he can tolerate the stress and pressure typically found in an entry level work place. 

In a March 2013 VA PTSD examination, it was mentioned that the Veteran had more than one diagnosis, and that it was not possible to differentiate symptoms attributable to each diagnosis. The Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relationships, and judgment, thinking and/or mood. 

The Veteran lived with his wife, and 21 and 9 year old sons. He had no friends. He saw his mother every couple of days. He interacted very little with his family. The Veteran had not worked since the previous (June 2011) examination. He had been granted full disability and he had not worked since. The Veteran had recurrent and distressing recollections of stressful events; recurrent distressing dreams; intense psychological distress at exposure to internal or external cues; and physiological reactivity on exposure to internal or external cues. The Veteran also had persistent avoidance of stimuli associated with the trauma. He experienced difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, and hypervigilence. The Veteran had depressed mood, anxiety, disturbance of motivation and mood, and suicidal ideation. 

The examiner reported that the Veteran presented to the examination angry and somewhat resistant to providing information. He expressed frustration with his level of service connection. It was stated that he endorsed symptoms consistent with PTSD and major depressive disorder, but he was dismissive and provided only general vague responses when asked for more specific examples or details. He avoided watching television; he isolated, and had outbursts of anger. The examiner reported that the symptoms continued to cause significant impairment across all levels of functioning. The examiner stated that it appeared they had remained about the same in severity since his prior examination. He endorsed daily suicidal ideation. Three weeks previously he had purchased a firearm for protection, he stated before firearm laws became more restrictive. When asked if he had any intention of harming himself he stated "It hasn't gotten that bad yet." He then stated that if suicide became a realistic option he would call the crisis line. The diagnoses were PTSD and major depression. The GAF score was 50. 


IV. Analysis

The Board has reviewed the evidentiary data and concludes that a rating in excess of 70 percent for the Veteran's PTSD is not demonstrated.

The evidence shows that the Veteran has a broad array of ongoing psychiatric symptoms associated with his PTSD, to include frequent flashbacks, nightmares, intrusive memories and recollections of traumatic events, and avoidance of associated stimuli. This is along with medical evidence of startle response, hypervigilence, irritability and outbursts of anger, and sleep disturbance. It is noted that the Veteran's symptoms also include depression affecting his functioning, clinically diagnosed as major depressive disorder. It is important to point out that the evidence does not reflect any competent opinion specifically drawing a distinction between the Veteran's major depressive disorder and PTSD. In fact, in the March 2013 VA PTSD examination, the examiner affirmatively acknowledged that it was not possible to differentiate those diagnoses. Consequently, when rating the PTSD, the Board must consider the extent of his major depressive disorder in the rating for his PTSD, but not instead as separately compensable disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998).

The clinical data also shows that more so recently, the Veteran has suicidal thoughts or ideations without evidence of plan. Regarding his social functioning, the Veteran has remained married and he has a family, living with his wife and two sons as recently as March 2013, but he interacts with them infrequently and he remains isolative. He reportedly has no friends, and has difficulty getting along with others. The Veteran does attend church weekly though. The Veteran has a history of employment but resigned due to a physical condition as he reported, and he has not worked since obtaining disability benefits. 

In terms of his cognitive functioning, it has been reported that the Veteran has problems with his memory, and consistently he has problems with concentration. The Veteran certainly has psychiatric symptoms related to PTSD and depression that substantially affect his functioning. Conversely, it has also been reported though he has remained coherent and there is no evidence of psychotic manifestations such as hallucinations, paranoid thinking or delusions. He has presented to examinations neatly dressed and groomed. A VA examiner reported that the Veteran had moderate to severe PTSD and Moderate depression in June 2011, and in March 2013 another examiner opined that the Veteran's functioning had remained about the same severity as the last time. His GAF scores were 50 both in June 2011 and March 2013 VA examinations. The Veteran was given a GAF score of 45 in November 2011, yet scores ranging from 41 to 50 are said to reflect just serious symptoms. See DSM-IV. The Board is aware that GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). 

The Board has reviewed the medical findings, and concludes that the Veteran's PTSD is not shown to be manifested by the symptoms consistent with a maximum 100 percent rating under 38 C.F.R. §  4.130, DC 9411, such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for basic concepts such as names of close relatives, or for the Veteran's own occupation or name. Therefore, the assigned 70 percent rating is adequate. 

In addition to the medical evidence, the Board has considered the statements and personal assertions provided by the Veteran, and his spouse. As laypersons they are competent to report on that as to which they have personal knowledge, such as observable symptoms like his anger or withdrawal. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). However, the extent and severity of his symptoms and, more importantly, his consequent disability, are judged in relation to the applicable rating criteria and with consideration of the other evidence in the file, including the objective clinical findings that have been noted in the course of his ongoing evaluation and treatment, such as when examined for VA compensation purposes. So this determination is multi-factorial, not just predicated on the lay statements of record and hearing testimony, rather, all of the relevant medical and other evidence. 

The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The lay statements are therefore outweighed by the medical findings of record, especially those of the VA compensation examiners charged with addressing the relevant rating criteria, since their findings do not support the conclusion that the Veteran's PTSD has caused total occupational and social impairment for a higher and maximum 100 percent initial rating. The Board bases this determination partly on the notion that, if in fact his symptoms were as severe as alleged, including insofar as their frequency and duration, they would have been evident when examined, but they were not, certainly not to the level required for a higher initial rating of 100 percent. Overall, he does not exhibit the type, frequency and severity of symptoms required for a higher or here, total schedular rating for PTSD. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that the factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels). And because his PTSD has never been more than 70 percent disabling at any point since the filing of this claim, the Board cannot "stage" this rating either. Hart and Fenderson, supra. 

For these reasons and bases discussed, the preponderance of the evidence is against his claim for a higher rating for PTSD, the "benefit-of-the-doubt" rule is inapplicable, and the Board must deny his claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 

Finally, in exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321 (2012). The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

Here, however, the schedular rating criteria contemplate the extent and severity of the Veteran's several PTSD symptoms. The Veteran has not worked since 2011, and he has since been awarded TDIU. There is no evidence of any exceptional or unusual disability picture here. The Board, then, is not obligated to refer this claim to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) Service for extra-schedular consideration. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). 


ORDER

A rating greater than 70 percent for PTSD is denied. 


REMAND

In February 2013, the Board remanded this claim for further development regarding service connection for GERD. It was mentioned in the Board's Remand that the Court had previously found that the Board did not address the reasonably raised assertion that the Veteran's GERD was aggravated by his service connected PTSD or medications used to treat PTSD. A VA medical examination had occurred in April 2012 yet it was pointed out in the Remand that that examiner had made general statements in concluding that medication did not cause GERD, and did not specifically addressed the three PTSD medications the Veteran used. 

The Board then again remanded the case to the RO and requested that the Veteran be scheduled for another examination to consider the Veteran's specific medications for PTSD, as well as treatise information submitted on the Veteran's behalf that referenced side effects of PTSD medication, medications causing GERD, and PTSD and gastrointestinal symptoms. 

In May 2013 a VA medical examination for esophageal conditions was performed. The examiner opined that the Veteran's GERD was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner also states that the by the Veteran's admission, the GERD started three years after service, and the medications for his PTSD, Bupropion, Clonazepam, and Trazodone did not have a side effect of GERD and PTSD although causing occasional gastrointestinal distress has never been linked to GERD, according to the literature. 

In the April 2013 statement, the Veteran's attorney points out that in the May 2013 VA medical examination and opinion, the examiner did not address the medical literature that had been provided, that supports a correlation between PTSD and GERD or medications used to treat PTSD and GERD. The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); Mattern v. West, 12 Vet. App. 222, 228 (1999). 

It was also mentioned by the Veteran's attorney that the VA examiner did not specifically address a nexus or link between the Veteran's PTSD and his GERD. The Board specifically notes that in the March 2013 examination report, the VA examiner did not respond to the questions on the VA examination form specifically regarding secondary service connection, or as had been requested by the Board. The Court has held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court in Stegall has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. at 271. As a result, the issue of service connection for GERD must be returned for additional development.  

Accordingly, the case is REMANDED for the following action:

1. Have the VA compensation examiner (or other suitable examiner) that provided the March 2013 esophageal medical examination and opinion, provide an addendum opinion specifying whether the Veteran's GERD was: 

i). Caused or aggravated by his service connected PTSD; 

ii) Caused or aggravated by the specific medications he takes for his service connected PTSD. 

The examiner must address the literature submitted by the Veteran in November 2011, including:

i) "GERD: Can certain medications increase severity?" 

ii) "Physical Health and Post-traumatic Stress Disorder: Review and Synthesis."

   iii) "PTSD and Physical Health." 

The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. 

If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. 

2. Then readjudicate the remaining claim for service connection for GERD in light of this and any other additional evidence. If this remaining claim continues to be denied, send the Veteran and his attorney another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim.


The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). 




______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs